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CHEQUE BOUNS CASE

Rebuttal evidence must be sufficient to rebut the presumption of sec. 138 and under sec.139 and as such their lordships of Madras High court confirmed the orders of lower courts- But, the evidence of D.W.1 is not sufficient to hold that the presumption under Section 139 of Negotiable Instruments Act has been prima facie rebutted. In his evidence, he narrated that what he has stated in his reply notice under Ex.P5. But, he has not filed any scrap of paper to show that he owns a tractor and ploughed the lands of the said Rathinasamy. Even, he has not filed any document or let in any evidence to prove the alleged relationship between the respondent/complainant and Rathinasamy. Furthermore, he has not given any explanation as to why he has not sent any notice to the said Rathinasamy to get back three blank cheques tendered by him as a security, at the time of borrowing of Rs.21,000/- and that has been adjusted towards the amount due for ploughing his lands. Since the revision petitioner/accused ploughed the lands of Rathinasamy and there was an amount due, neither he issued any notice nor preferred any complaint against Rathinasamy. So there is no documentary evidence was produced before this Court to substantiate his evidence to rebut the presumption under Section 139 of Negotiable Instruments Act.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Typical streetlife in Erode, capital of Erode ...

Typical streetlife in Erode, capital of Erode district, India. (Photo credit: Wikipedia)

DATED: 21.06.2011

CORAM

THE HONOURABLE MS.JUSTICE R.MALA

CRL.R.C.No. 1330 of 2008

S.Thangavel .. Petitioner/Accused

..Vs..

V.Kuppusamy .. Respondent/Complainant

Prayer:- This Criminal Revision Case is filed under Sections 397 read with 401 of Cr.P.C., to call for the entire records relating to order dated 06.08.2008, passed in C.A.No.69 of 2008, on the file of the Ist Additional Sessions Judge, Erode, whereby confirming the order of the District Munsif Court-cum-Judicial Magistrate, Kodumudi passed in C.C.No.173 of 2005, dated 25.01.2008 and set aside the same.
For Petitioner : No appearance
For Respondent : Mr.V.S.Kesavan
ORDER
This revision has been preferred against the judgment of conviction and sentence, dated 06.08.2008, in C.A.No.69 of 2008 on the file of the First Additional Sessions Judge, Erode, whereby the accused found guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and imposed a fine of Rs.5,000/- in default to undergo three months’ simple imprisonment, confirming the judgment of conviction and sentence, dated 25.01.2008, in C.C.No.173 of 2005, on the file of the District Munsif Court-cum-Judicial Magistrate’s Court, Kodumudi.

2.The gist and essence of the case is as follows:
The revision petitioner/accused herein borrowed a sum of Rs.50,000/- from the respondent/complainant on 07.05.2005. To discharge the liability, the revision petitioner/accused issued a cheque bearing No.671379 drawn on Bank of Madura Limited, Erode, dated 07.08.2005 for Rs.50,000/-, which was marked as Ex.P1. When the cheque was presented for encashment in Bank, it was returned as ‘Insufficient funds‘ as per return memo dated 16.08.2005 along with debit advice dated 19.08.2005, which was marked as Ex.P2. Therefore, the respondent issued a statutory notice to the revision petitioner on 10.09.2005, which was marked as Ex.P3 and an acknowledgement card was marked as Ex.P4. On 05.10.2005, the revision petitioner issued a reply notice to the respondent under Ex.P5 stating that the allegations in the statutory notice are false. Since the revision petitioner has not repaid that amount, the respondent/complainant preferred a complaint under Section 138 of Negotiable Instruments Act.
3.The trial Court after considering the evidence of P.W.1, D.W.1 to D.W.3 and Exs.P1 to P5, Exs.D1 to D4, found the revision petitioner/accused guilty for the offence under Section 138 of Negotiable Instruments Act and sentenced him to undergo one year simple imprisonment and imposed a fine of Rs.5,000/- in default to undergo three months’ simple imprisonment, against which, the accused preferred an appeal in C.A.No.69 of 2008, on the file of the First Additional Sessions Judge, Erode. The learned First Additional Sessions Judge, after considering the arguments of both the counsel and materials available on record, confirming the judgment of conviction and sentence passed by the trial Court, against which, the present revision has been preferred by the accused.

4.In spite of several adjournments, neither the petitioner nor his counsel present. When the matter was posted ‘for orders’ on 14.06.2011, no one appeared for the petitioner and putforth the arguments. Since it is a revision case, this Court empowers to peruse the materials available on record and decide the matter on merits.

5.On perusal of the evidence of P.W.1/the respondent and D.W.1/the revision petitioner, issuance of cheque and signature in the cheque under Ex.P1 are admitted. But, D.W.1 in his chief-examination, he stated that blank cheques have been issued by him as a security to one Rathinasamy, when he borrowed an amount of Rs.21,000/-. He further stated that when he ploughed the lands of Rathinasamy with his tractor, a sum of Rs.45,000/- was due from Rathinasamy to him. When he demanded Rs.45,000/-, Rathinasamy has not repaid the same and misused the blank cheques with the help of the respondent/complainant, he come forward with the statutory notice under Ex.P3 and preferred a complaint against the petitioner/accused. So as per the evidence of D.W.1, it has clearly proved that Ex.P1-cheque was issued by him. Once the issuance of cheque has been admitted by D.W.1/the revision petitioner herein, the respondent/complainant is entitled to presumption under Section 139 of Negotiable Instruments Act. It is true that it is a rebuttable presumption. So it is the duty of the revision petitioner/accused to rebut the presumption. The revision petitioner/accused was himself examined as D.W.1 and the Bank Managers were examined as D.W.2 and D.W.3. But, the evidence of D.W.1 is not sufficient to hold that the presumption under Section 139 of Negotiable Instruments Act has been prima facie rebutted. In his evidence, he narrated that what he has stated in his reply notice under Ex.P5. But, he has not filed any scrap of paper to show that he owns a tractor and ploughed the lands of the said Rathinasamy. Even, he has not filed any document or let in any evidence to prove the alleged relationship between the respondent/complainant and Rathinasamy. Furthermore, he has not given any explanation as to why he has not sent any notice to the said Rathinasamy to get back three blank cheques tendered by him as a security, at the time of borrowing of Rs.21,000/- and that has been adjusted towards the amount due for ploughing his lands. Since the revision petitioner/accused ploughed the lands of Rathinasamy and there was an amount due, neither he issued any notice nor preferred any complaint against Rathinasamy. So there is no documentary evidence was produced before this Court to substantiate his evidence to rebut the presumption under Section 139 of Negotiable Instruments Act. In such circumstances, I am of the view that Ex.P1-cheque has been issued for discharging of existing legal liability. When the cheque was presented for collection, it was returned as ‘Funds insufficient as per return memo under Ex.P2. So the respondent/complainant issued Ex.P3 statutory notice to the revision petitioner/accused and an acknowledgement card was marked as Ex.P4. A reply notice was issued by the revision petitioner, which was marked as Ex.P5. Since he has not repaid that amount, the respondent preferred a complaint within the stipulated time, for the offence under Section 138 of Negotiable Instruments Act. In such circumstances, I am of the view that both the Courts below have considered all the aspects in proper perspective and came to the correct conclusion that the revision petitioner was found guilty for the offence under Section 138 of Negotiable Instruments Act. Hence, I do not find any illegality or infirmity in the judgment of conviction and sentence passed by both the Courts below and therefore, it does not warrant any interference.

6.In fine,
The Criminal Revision is dismissed.
The judgment of conviction and sentence passed by both the
Courts below are hereby confirmed.
The bail bond executed by the revision petitioner/accused, if
any, shall stand cancelled.
The trial Court is directed to take steps to secure the custody of
the revision petitioner/accused to undergo the remaining
period of sentence.

.06.2011

Index :Yes
Internet:Yes
kj

R.MALA,J.
Kj
To

1.First Additional Sessions Judge
Erode.

2. The District Munsif Court-cum-Judicial Magistrate
Kodumudi.

3.The Public Prosecutor
High Court, Madras.

4.The Record Keeper
Criminal Section, High Court, Madras.

 

 
Pre-delivery order made in
CRL.R.C.No.1330 of 2008

 

 

 

 

 

 
.06.2011

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